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October 28, 2016

Operating a social media account: What obligations arise for employers?

In today’s modern world, employers need to be as familiar with hashtags, tweets and trending topics as they are with any other form of customer communication. While social media has become an extremely useful forum for interacting with a wide audience, employers may not have considered whether their use of social media platforms gives rise to any employment issues.

In a recent arbitration decision, Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (Use of Social Media Grievance) (“Amalgamated Transit”), Arbitrator Howe found that, in operating its Twitter account, the TTC was in breach of certain provisions of the collective agreement, its own policies, the Human Rights Code and the Occupational Health and Safety Act (“OSHA”). Interestingly, he declined to award a specific remedy; leaving it to the parties to work and create a mutually acceptable policy. Although the decision was based in part on a consideration of specific provisions in the TTC’s collective agreement and workplace polices, it does provide practical suggestions for employers to consider when operating their social media platforms.

At issue in Amalgamated Transit was the TTC’s Twitter account @TTChelps, which the TTC created in order to respond to customer service questions and concerns. In 2013, the Union became aware of online abuse and harassment directed towards TTC employees through the Twitter account. Using the account, users would make comments about TTC employees that were racist, sexist, homophobic and violent. Less frequently, TTC riders would post photos of drivers, generally accompanied with complaints.

The TTC responded to these tweets in various ways. For example, in one instance a Twitter user complained that a driver refused to stop to let the user on the bus. The TTC responded:

We do encourage our operators [to] accommodate whenever possible, however they do have a schedule to maintain

In another instance, a Twitter user complained, using a number of obscenities directed towards a TTC driver, that service was slow. The TTC responded:

We are here to help, however discriminatory or abusive comments are not condoned

In another example, a Twitter user commented that the driver was extremely attractive. The TTC responded:

You should tell them that. Sure they would appreciate the compliment

In a further example, a Twitter user referred to a driver as ‘sexy’ and stated that this was intended to be a compliment for the driver. The TTC responded:

Thanks for the feedback, glad to hear! LOL.

The Union took issue with the TTC’s responses in these types of situations, claiming that the responses inadequately addressed the user’s offensive comments or framed TTC employees in a negative light.

Protecting Employees From Harassment

After a fulsome review of the tweets that the Union claimed constituted harassment and discrimination, Arbitrator Howe determined that the TTC had failed to take all reasonable and practical measures to protect its employees from harassment through the Twitter account. He explained that the TTC had obligations to protect workers from harassment and discrimination that arose from the Human Rights Code, the collective agreement, and the TTC Workplace Harassment Policy. Arbitrator Howe referred to the TTC’s Workplace Harassment Policy, which contained a provision that specifically referenced offensive behaviour arising from the use of the internet, e-mail or electronic communications and found that the TTC’s Twitter account was part of the workplace.

Going forward, Arbitrator Howe explained how the TTC should respond to offensive tweets. Rather than ignore the tweet, or state that the TTC doesn’t condone the offensive comments, or ask the user to refrain from using offensive language, the TTC should instead notify offending users that they do not condone the behaviour and request that the user delete the offensive post. Additionally, the TTC should let users know that if they don’t delete the offending post they will be blocked from the account.

Protecting Employee Privacy

Arbitrator Howe suggested that the TTC adopt a similar approach to responding to tweets that contained photos or videos of employees. In order to prevent any invasion of employee privacy through photos posted on Twitter, the TTC should again indicate that it does not condone the behaviour and request that the user delete the photo/video. Again, Arbitrator Howe suggested that the TTC warn users that their account will be blocked if they did not do so.

Customer Complaints

The Arbitrator also found that the TTC needed to ensure that the information tweeted in responses to complaints was accurate and did not include any inappropriate editorializing.

@TTChelps Ex of lack of front line Cust svc. Driver of car 4085, 504 line watching young mother struggle w/ stroller onto streetcar #ttc

@TTChelps Response: Unfortunately, operators are not required to assist.

Arbitrator Howe pointed out that using editorial comments which were implicitly critical, such as adding the word “unfortunately” in the above example, or implying that a TTC worker could have exercised discretion in certain situations, were inappropriate.  He also expressed concern that the TTC’s empathetic responses to complaints about TTC employees could also raise issues as it could be perceived as the TTC validating that the employee had done something wrong.

Arbitrator Howe pointed out that in accepting or responding to complaints about specific drivers through Twitter, the TTC failed to comply with the procedure set out for public relations complaints in the collective agreement. In addition, he found that by addressing complaints in a public forum, the TTC failed to comply with the requirement that an employee be disciplined in a manner that is consistent with his or her dignity and noted that generally discipline is a private matter between an employee and his or her employer. As a potential remedy, Arbitrator Howe suggested the TTC notify Twitter users that complaints cannot be filed through Twitter and provide them with contact information for making a complaint offline. 

Protecting Employees from Harassment and Privacy Breaches on Social Media

Although the broader implications of Arbitrator Howe’s decision in Amalgamated Transit remain unsettled, proactive employers may want to adopt some of the strategies Arbitrator Howe suggested for responding to offensive online behaviour directed at employees. These strategies include:

  1. Not adding editorial comments to Twitter responses.
  2. Warning Twitter users that they will be blocked for using vulgar and obscene language or for posting photos of employees.
  3. Developing templated Twitter responses to ensure compliance with any statutory requirements or workplace policies.
  4. Creating a social media policy.

The decision, which treads into unchartered waters with respect to protecting employees from online harassment and discrimination, serves as a reminder to employers that despite all the benefits social media has to offer, it can also create new avenues through which employees may be subjected to workplace harassment or breaches of privacy and new obligations for employers.

The foregoing is for informational purposes only, and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyer’s by email or telephone.

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